Opinion
No. 5002019
April 20, 2007
MEMORANDUM OF DECISION
This present action was brought by the plaintiff, Jack Kwastel, pursuant to the Dram Shop Act, General Statutes § 30-102. The named defendants are the owners, backers and permitees of three separate establishments that serve alcohol as part of their businesses. In a three-count complaint filed on October 12, 2006, the plaintiff alleges the following facts. On October 3, 2005, Daniel W. Price was a patron at the three separate establishments. Throughout the afternoon and/or evening hours, the respective defendants or their agents served alcohol to Price while he was intoxicated. The complaint does not allege the order in which Price frequented the three different establishments. Subsequently, Price, as a pedestrian on Route 85 in Waterford, was struck and killed by a vehicle driven by the plaintiff. The plaintiff does not allege any bodily injury, nor does he allege any relationship with Price. The plaintiff does allege, however, that he suffers from mental pain and suffering, including post traumatic stress disorder, as a result of the incident.
Section 30-102 provides, in relevant part: "If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars . . . to be recovered in an action under this section . . ."
As alleged in the complaint, The Olive Garden is a bar and restaurant owned and/or backed by Darden GC Corp., with Eric Kosloff as the permittee. Charley's Eating and Drinking Saloon is a bar and restaurant owned and/or backed by BBRG Operating, Inc., with Robert Russell as the permittee. Ruby Tuesday is a bar and restaurant owned and/or backed by Ruby Tuesday, Inc., with Henry C. Grau as the permittee.
Presently before the court is a motion to strike count three, which is asserted against two of the defendants, Ruby Tuesday, Inc. and Henry C. Grau. The defendants claim that the allegations fail to state a cause of action because: (1) § 30-102 does not permit recovery for mental injuries where no corresponding physical injury is alleged; (2) the plaintiff's emotional distress is not compensable because the type of harm involved was not foreseeable; and (3) the plaintiff was not "closely related" to Price, which is an essential requirement to recover for bystander emotional distress.
For convenience, "the defendants" hereinafter refers only to Grau and Ruby Tuesday, Inc.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, CT Page 5587 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The first issue is whether § 30-102 permits recovery for mental injuries. Section 30-102 provides for recovery of damages when an intoxicated person "injures the person or property of another" as a result of the intoxication. The defendants contend that "injures the person" should be limited to bodily injuries, thereby barring the plaintiff's cause of action.
The defendants emphasize that other jurisdictions with Dram Shop Acts containing language similar to § 30-102 have interpreted "injures the person" to include only bodily injuries. See, e.g., Adkins v. Uncle Bart's, Inc., 2000 UT 14, 25, 1 P.3d 528 (2000) (holding "`injuries in person' to mean `physical bodily injuries'"). They concede, however, that this view is not unanimous. See, e.g., Winje v. Cavalry Veterans of Syracuse, Inc., 124 A.D.2d 1027, 508 N.Y.S.2d 768 (1986) ("emotional distress or trauma is a species of personal injury . . . encompassed within the language `injured in person' in the Dram Shop Act").
In Connecticut, "[t]he principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the Legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533.
This court finds that the plain meaning of "injures the person" includes mental injuries to a person. In Kilduff v. Adams, Inc., 219 Conn. 314, 93 A.2d 478 (1991), our Supreme Court addressed the use of "personal injury" in General Statutes § 52-174. The court explained that "[t]he defendants' argument that emotional distress is not a `personal injury' as that term is used in 52-174(b) ignores the plain meaning of that term as well. A `personal injury' is defined as `an injury affecting one's physical and mental person as contrasted with one causing damage to one's property.' Webster's Third New International Dictionary." Id., 337; see also Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 313, 524 A.2d 61 (1987) (as used in insurance policy, the term "personal injury" is broader than "bodily injury"); Eng v. Sheehy, Superior Court, judicial district of Fairfield, Docket No. CV 00 0370984 (February 15, 2001, Melville, J.) ( 28 Conn. L. Rptr. 719) (bystander emotional distress is "personal injury" as that term is used in General Statutes § 14-295); Krosky v. Bushnell Towers Condo, Superior Court, judicial district of Hartford, Docket No. CV 92 0509549 (October 9, 1992, Walsh, J.) [ 7 Conn. L. Rptr. 528] (in loss of consortium claim, court construes "personal injuries" to include emotional harm standing alone); Oliver v. Blue Cross Blue Shield, Superior Court, judicial district of Litchfield, Docket No. 055630 (June 4, 1992, Pickett, J.) ( 6 Conn. L. Rptr. 541) (court found that emotional distress is within meaning of "personal injury" as used in General Statutes § 52-190(a); but cf. General Statutes § 31-275(16)(B) ('"[p]ersonal injury' or `injury' shall not be construed to include . . . (ii) A mental or emotional impairment, unless such impairment arises. . . from a physical injury or occupational or occupational disease . . ."); General Statutes § 22-357 ("[i]f any dog does any damage to either the body or property of any person, the owner or keeper . . . shall be liable for such damage.") (Emphasis added.)
The term "injures the person," as it is used in § 30-102, is broader than mere injuries to the body, and includes damages for emotional distress. Argument by the defendants that mental damages should be limited to persons sustaining a physical injury is directed toward the limitations on emotional distress recovery, not whether the § 30-102 permits those type of damages.
This leads to the remaining grounds of the motion to strike, which address whether the plaintiff's allegations satisfy the requirements that Connecticut has placed on recovery for mental harm. As an initial matter, it is emphasized that the plaintiff has not specifically pleaded the precise source of his emotional distress. "Historically, courts have accorded separate treatment to claims for emotional injury resulting from negligent conduct, depending upon whether the emotional injury resulted from the plaintiff's apprehension of harm to himself or herself or from apprehension of harm to another." Talbot v. Kirkup, Superior Court, judicial district of New London, Docket No. 551986 (September 20, 2000, Corradino, J.), quoting Modern Tort Law, Lee and Lindhal, Vol. 3, § 32.06. The plaintiff's cursory memorandum in opposition to the motion to strike has shed little light on the precise nature of the claim. Beyond citing Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978), for the proposition that emotional distress recovery is not dependent upon physical harm or the risk of physical harm, the plaintiff cites to three cases with no discussion. Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002), which arose in the employment context, seems to be of little relevance. The other two cases; Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), and Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996); involve claims of bystander emotional distress.
Given the imprecise allegations of the complaint, as well as the nature of the cases cited by the plaintiff, the complaint is most fairly read as setting forth a claim for bystander emotional distress. That is, the plaintiff claims to be suffering emotional distress based on his contemporaneous sensory perception of injury to Price.
If this court is mistaken, and the plaintiff's emotional distress is based on apprehension of harm to himself, then the plaintiff is invited to plead his cause of action accordingly.
In Clohessy v. Bachelor, supra, 237 Conn. 31, our Supreme Court recognized a cause of action for emotional harm resulting from witnessing injury to a third party. In recognizing the legal duty to protect against this harm, the court held that "a bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response." Id., 56.
In the present case, the plaintiff has failed to satisfy the first requirement because there is no allegation of any relationship with Price. Therefore, the plaintiff is not entitled to recover for emotional distress arising out of the fatal injury to Price. Although not cited or argued by the plaintiff, this court has also considered cases that discuss the issue of the bystander being made an "unwitting instrument" or "participant" in the victim's death. For example, in Guillory v. Arceneaux, 580 So.2d 990 (La.App. 3d Cir.), writ denied, 587 So.2d 694 (La. 1991), the court permitted the plaintiff to recover emotional distress damages "as a result of having been placed in a position in which her actions contributed to the injury or death" of the victim, despite no relationship with the victim. Id., 995. The court held that the limitations of a bystander emotional distress claim do not apply when the plaintiff is an active participant in the harm to a third party. Id. Rather, the court engaged in a separate policy analysis to define the scope of the duty under the circumstances. Id., 996. See also Clomon v. Monroe City School Board, 572 So.2d 571 (La. 1990).
In Louisiana, the limitations on recovery for bystander emotional distress, which are similar to Connecticut's limitations, were originally adopted in Lejeune v. Rayne Branch Hosp., 556 So.2d 559, 570 (La. 1990). The requirements were later modified by legislative action. See 1991 La. Act 782.
Faced with the same issue, the Supreme Court of Alaska reached a different conclusion in Kallstrom v. United States, 43 P.3d 162 (2002), where the plaintiff had unwittingly, and allegedly due to the defendants' negligence, given a poisoned beverage to a young girl who suffered severe internal injuries. Id., 164. The court noted that the plaintiff's "case is compelling because she comes close to so many of the relevant factors for establishing [negligent infliction of emotional distress] in the absence of physical injury." Id., 168. The court "decline[d] to accept unwitting instrument status — that is, mere innocent presence in the causal chain — as a substitute for the existing requirement of close personal relationship. Such a factor is so variable that it does not meaningfully distinguish between claims that should be allowed and those that should not." Id.
In Kallstrom v. United States, supra, 43 P.3d 165, the court noted that while Alaska generally prohibits recovery for negligent infliction of emotional distress in the absence of physical harm, there is an exception to this general rule in the context of bystander emotional distress. In bystander cases, Alaska applies a three-part test of reasonable foreseeability that is similar to Connecticut's limitations. Id.
In the present case, the plaintiff's emotional distress, as alleged, results from the serious physical injury and/or death of another person. Under the rule announced in Clohessy v. Bachelor, supra, 237 Conn. 31, the plaintiff cannot recover for this type of harm unless he is closely related to the victim. Perhaps the plaintiff's role in Price's death would be of relevance if the test for bystander emotional distress was formulated differently by our Supreme Court. That is, if the mandatory conditions were crafted as mere factors to consider, then it is possible that the plaintiff's "participation" in the harm could compensate for the inability to satisfy another factor. Such flexibility is not present in the test announced in Clohessy, which sets forth mandatory conditions that must be satisfied in order to recover on the basis of perceiving the injury or death of a third party. This court is bound to apply Clohessy, and is not at liberty to abrogate one condition and replace it with another.
Based on the foregoing, the motion to strike count three is granted.